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Disclosure of Privileged Documents by “Inadvertence” Does Not Result in Removal of Opposing Solicitors
Published in the July 2008 issue of Litigation Notes - View Article
Summary: Defendants claimed that privileged documents had been produced by inadvertence and that the solicitors who had received and reviewed the documents should be removed as solicitors of record. The Court found that the documents had not been in advertently produced, but that it had been done as a strategy to obtain the removal of opposing solicitors
The Ontario Superior Court of Justice recently had to deal with one of those unfortunate and embarrassing cases where privileged documents are produced by inadvertence. What makes this case interesting is that the Court concluded that the production was not inadvertent at all but done deliberately as a strategy for having the plaintiff’s solicitors removed as solicitors of record in the action.
In December of 2005 one of the defendants in the action, Jeffrey Maxwell, was being examined for discovery. In the course of the examination he began producing documents which had not hitherto been produced and did not appear in the Affidavit of Documents delivered by the defendants. The examination was adjourned. A motion was brought before a Master, who ordered the defendants to deliver a further and better Affidavit of Documents within six days. She was not amused at the defendants’ failure to have followed the Rules of Civil Procedure with respect to the production of documents.
The continued examination of Jeffrey Maxwell was scheduled for December 21, 2005. On December 16, 2005 he swore a Supplementary Affidavit of Documents in which he claimed privilege for “various correspondence passing between the corporations and their solicitors”, without specifying the documents over which privilege was claimed. The same day he swore a further Supplementary Affidavit of Documents in which he referred to a CD of e-mails to be reviewed by his counsel. The Affidavit referred to the fact that some of the documents on the CD may be privileged. His counsel apparently thought that the e-mails on the CD had been produced but they had not.
Trial in the matter was scheduled to commence on January 18, 2007 and on January 8, 2007, counsel for the defendant delivered paper copies of 4,400 e-mails that had been printed from the CD. The next day, counsel for the plaintiff wrote to counsel for the defendant and stated: “I note that among the very damning e-mails you have included a number of letters between your client and Mr. Batchelor, as you have previously done. I trust that you have done so intentionally”. There was no response to this aspect of the letter.
The plaintiff brought a motion to the trial judge at the commencement of trial on January 18 seeking relief arising out of the late production of the 4,400 emails. The trial was adjourned and the trial judge ordered the defendants to produce a fresh Affidavit of Documents. This was delivered on February 13, 2007 and at this point privilege was claimed over 63 documents which had been included in the 4,400 emails delivered to the plaintiff’s solicitors. This was the first time that privilege had been claimed over specific documents. No request was made by the defendants for the return of these documents.
The defendants brought a motion on November 23, 2007, claiming privilege over certain documents but failing to list them. In April of 2008 a Supplementary Motion Record was delivered and by now the defendants were claiming privilege over 385 documents. The defendants were also seeking to have the plaintiff’s solicitors removed as solicitors of record, as a result of their having received the privileged documents. The Court considered the caselaw which establishes the circumstances in which privilege is deemed to have been waived through inadvertent disclosure: “Whether or not privilege has been waived through inadvertent disclosure depends on the circumstances and requires the Court to consider three factors- whether the error was in fact inadvertent and thus excusable; whether an immediate attempt has been made to retrieve the documents; and whether preservation of the privilege in the circumstances would cause unfairness to the receiving party.”
In this case the Court found that the defendants had demonstrated no urgency in retrieving the disputed documents and felt that given the length of time that the solicitors for the plaintiff had been acting on the plaintiffs behalf, it would be unfair to have them removed. The Court referred to other cases in which the motion dealing with the inadvertently disclosed privileged documents was held in camera and the motion material sealed at the request of counsel. The Court observed that no such request was made in this case and that although this was not determinative of the question, it seemed “indicative of the attitude of the Maxwell defendants and their counsel to the issue of privilege over the documents in question. There is no great concern that these allegedly privileged documents will be reviewed by someone other than the senders or receivers”.
The Court stated that it regrettably had to conclude that the entire issue was raised “as a strategic maneuver to attempt to have the solicitors for the plaintiff removed from the record on the eve of trial”.
Earth Energy Utility Corp. v. Maxwell, 2008 CanLII 35673